Petition — Laredo Newspapers, Inc. v. Foster

1

IN THE | eee RODAK, JR., CLERK

Supreme Court of the Anited States -

OCTOBER TERM, 1976

No. 98-996

LAREDO NEWSPAPERS, INC.,

Petitioner,

JOHN E. FOSTER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF TEXAS

GEORGE P. KAZEN

Mann, Castillon, Freed & Kazen

Post Office Box 820

Laredo, Texas 78040

(512) 723-5581

Attorneys for Petitioner

Washington, 0.C. © CLB PUBLISHERS « LAW PRINTING CO. e (202) 393-0625

(i)

TABLE OF CONTENTS

Page

Ne es vaca ah a 2

els ea a a a a ee 2

os ee ea ween een ees 2

CONSTITUTIONAL PROVISIONS INVOLVED ......... 3

DECREE GE UP GEE vce cece cet evecrceveess 4

REASONS FOR GRANTING THE WRIT .............. 7

1. THE TEXAS SUPREME COURT HAS

PLACED AN UNWARRANTED AND UN-

PRECEDENTED RESTRICTION ON THE

FREEDOM OF THE PRESS TO CRITICIZE

PUBLIC OFFICIALS, IN DIRECT VIOLA-

TION OF PRIOR RULINGS OF THE

UNITED STATES SUPREME COURT ........... 7

2. THE TEXAS SUPREME COURT SERI-

OUSLY MISINTERPRETED PRIOR DECI-

SIONS OF THIS COURT BY HOLDING

THAT A PROFESSIONAL CONSULTANT

PAID BY PUBLIC FUNDS TO ADVISE A

GOVERNMENTAL BODY ON A MATTER

OF PUBLIC CONCERN WAS NOT AT

LEAST A “PUBLIC FIGURE” .............20.. 10

3. THIS CASE WILL ENABLE THE UNITED

STATES SUPREME COURT TO DEFINE

THE LIABILITY STANDARD WHICH THE

STATES MAY ADOPT IN SUITS INVOLV-

ING A DEFAMATION, THE SUBSTANCE

OF WHICH DOES NOT MAKE SUB-

STANTIAL DANGER TO REPUTATION

TTC TEC ETC TCT TT Tee 15

EE eee ee eee er ee 17

re rr eee Sere rey ee la

(ii)

TABLE OF AUTHORITIES

Cases:

Garrison v. Louisiana, 379 U.S. 64 (1964) .......

Gertz v. Welch, 418 U.S. 323 (1974) ...........

Henry v. Collins, 380 U.S. 356 (1965) ..........

Ocala Star-Banner Co. v. Damron, 401 U.S. 295

PP err rrr rrr re eee y

Rosenblatt v. Baer, 383 U.S. 75(1966) .........

New York Times Co. v. Sullivan, 376 U.S. 254

SS Raeeeee ere Ban oe toes

Time, Inc. v. Hill, 385 U.S. 374 (1967) .........

Turley v. W.T.A.X., Inc., 236 N.E.2d 778 (Ill. App.

ne beta nee ntee in he eens aw ne ces 6s

Other Authorities: ‘

Prosser on Torts, 2d Ed., Chapter 19 §95 .......

Restatement of Torts, Chapter 25 §607 .........

seeee 14

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1976

No.

LAREDO NEWSPAPERS, INC..,

Petitioner,

JOHN E. FOSTER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF TEXAS

The Petitioner, Laredo Newspapers, Inc., respectfully

prays that a Writ of Certiorari issue to review the

Judgement and Opinion of the Supreme Court of Texas

entered in this proceeding on July 14, 1976.

BEST COPY AVAILABLE

2

OPINION BELOW

- The opinion of the Supreme Court of Texas is reported

in 541 S.W.2d 809. The majority opinion and both

dissenting opinions are reproduced in the Appendix

hereto. The opinion of the Texas Court of Civil Appeals

appears in 530 S.W.2d 611.

JURISDICTION

The judgment of the Supreme Court of Texas was

entered on July 14, 1976. A timely Motion for

Rehearing was overruled on October 6, 1976, and this

Petition for Certiorari was filed within ninety (90) days

of that date. This Court’s jurisdiction is invoked under

28 USC §1257(3).

QUESTIONS PRESENTED

1. In a libel suit brought by an elected public

official, whether a State Supreme Court can refuse to

apply the malice standard on the grounds that the

newspaper article contained no reference to the Plain-

tiff’s official position, and therefore did not relate to

his official conduct.

2. In a libel suit brought by an elected public

official, even if the “official conduct” concept still has

any vitality, can the question of whether or not the

allegedly libelous statements relate to the Plaintiff's

3

fitness for office be left to a jury to decide as a fact

question? |

3. Whether a professional engineer hired by a County

Commissioners Court and paid with public funds to

advise the Court on flooding problems which had

caused public complaint is not a “public official’ or

“public figure” for purposes of a newspaper article

concerning those same flooding problems and public

complaints merely because he had no personal interest

in the problem and did not seek publicity for his role

in the controversy.

4. Whether the applicability of the malice standard

to libel suits by public officials depends hpon the

amount of public interest manifested toward that

official prior to the alleged libel.

5. Whether an erroneous factual statement that an

engineer had platted a certain residential area, in the

context of a newspaper article discussing flooding

problems in that area, would warn a reasonably prudent

editor of its defamatory potential and thus form the

basis for civil liability based only on a_ negligence

standard.

CONSTITUTIONAL PROVISIONS INVOLVED

First Amendment: ‘‘Congress shall make no law

respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Government

for a redress of grievances.”

Fourteenth Amendment, Section 1: ‘‘All persons

born or naturalized in the United States, and subject to

the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State

4

shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States;

or shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.”

STATEMENT OF THE CASE

Respondent John E. Foster filed a libel suit in the

111th District Court of Webb County, Texas against

Petitioner, Laredo Newspapers, Inc., seeking damages as

a result of a newspaper article published in The Laredo

Times on Sunday, June 17, 1973 (a copy of which

article is attached in Appendix A hereto).

From 1967 continuously through the time of publi-

cation, and in fact to the present time, Foster has been

the County Surveyor of Webb County, Texas, filling a

post established by Article 5283, Vernon’s Annotated

Texas Statutes. He was first appointed to the office

upon the death of his father, and thereafter has been

regularly elected by popular ballot.

In addition, Foster is a licensed civil engineer engaged

in private engineering practice in Laredo, Texas. It is

undisputed that for at least 13 years prior to the

publication, Foster was routinely hired by the County

of Webb to handle every major County project requir-

ing the services of an engineer. These projects included

construction of the county swimming pool, a proposal

to the State Wildlife and Park Department for develop-

ment of recreational areas, road improvements, a study

of long-range paving improvements, proposals connected

with the county dam and recreational lake, a study of

jail improvements, and design of a children’s park.

5

One such county project involved investigation by

Foster of a recurring flooding problem in a residential

subdivision known as “Del Mar Hills.” In 1972 a citizen

had complained to the Commissioners Court of Webb

County about this flooding problem. The complaint was

promptly referred to Mr. Foster for investigation and

study. At a Commissioners Court meeting on June 11,

1973, the same citizen returned to complain about the

same problem. Because of his prior study, Mr. Foster

was immediately summoned by the Commissioners

Court for his advice and opinion on the flooding

problem at that meeting. The Laredo Times published a

newspaper article on June 11, 1973 reporting the

citizen’s complaint about the flooding. Thereafter, a

local contractor engaged in the development of the

subdivision went to the newspaper to complain about

the first article because he felt that the article left the

misleading impression that flooding existed throughout

the subdivision rather than affecting only certain areas.

The result of this contact was the allegedly libelous

article of June 17, 1973. That second article quoted the

contractor at length with regard to the nature of the

flooding problem, and his opinions on the possible

solutions of that problem. The article contained the

following references to Foster:

“The Rice Development official said the flooded

area in question was platted by Jack Foster, who

doubles as consultant engineer for Webb County.

Foster has been handling numerous engineering

jobs for the Commissioners Court on a consultant

basis involving road improvements, some paving,

park recreational work, and drainage problems in

Del Mar Hills.”

The statement in the article that Foster platted the

flooded area was not correct. He had platted other

areas in the subdivision, but not the one where the

flooding was occurring.

6

Foster filed suit claiming that the article was libelous

because it placed direct responsibility on him for the

flooding and thereby indicated that his work was of

poor quality, and also claiming that the article accused

him of unethical and illegal conduct by inferring a

conflict of interest between his services for the County

and his private practice. Petitioner filed a First

Amended Answer specifically claiming a privilege under

the United States Constitution, and pleading that Foster

was either a “public official” or a “public figure,” and

there was an absence of malice on its part.

The trial court sustained a Motion for Summary

Judgment filed by the newspaper. This Judgment was

unanimously affirmed by the Texas Court of Civil

Appeals, sitting at San Antonio, Texas, which held that:

“In our opinion, Foster clearly falls within the most

restrictive definition of a ‘public official’ or ‘public

figure,” and we hold that he was both a public official

and a public figure as those terms are defined by the

courts of this State and of the United States.” 530

S.W.2d at 616. That Court then found an absence of

malice as a matter of law. The Texas Supreme Court,

with one original dissent, reversed the lower courts. That

Court held that Foster, as elected County Surveyor, was a

“public official,” but that the malice standard did not

apply because the publication contained no express

reference to that office and thus did not relate to his

fitness for office. It further held that a jury must

decide whether the article contained any implied refer-

ence. The Court also held that as a paid consultant

engineer, Foster was neither a “public official” nor

“public figure’ under United States Supreme Court

opinions. Thus considering the case as involving a libel

suit by a private individual, the Court then adopted the

negligence standard in Texas and further held that the

proof failed to establish that the allegedly libelous

7

statements were insufficient to warn a_ reasonably

prudent editor of their defamatory potential. Petitioner

filed a Motion for Rehearing which was subsequently

overruled, but on that occasion one justice was noted as

not sitting, while another justice added a second

dissenting opinion, joined by the Chief Justice, ex-

pressly stating that the rule announced by the majority

was contrary to decisions of the United States Supreme

Court.

REASONS FOR GRANTING THE WRIT

l.

THE TEXAS SUPREME COURT HAS

PLACED AN UNWARRANTED AND UN-

PRECEDENTED RESTRICTION ON THE

FREEDOM OF THE PRESS TO CRITICIZE

PUBLIC OFFICIALS, IN DIRECT VIOLA-

TION OF PRIOR RULINGS OF THE

UNITED STATES SUPREME COURT.

Although explicitly holding that Respondent Foster

was a “public official” for purposes of the rule in New

York Times Co. v. Sullivan, 376 U.S. 254 (1964), the

Texas Supreme Court refused to apply the malice

standard on the grounds that the newspaper article in

question did not clearly relate to Foster’s “official

conduct.” This holding was made despite the express

recognition that the United States Supreme Court has

interpreted the “official conduct” concept very broadly

and has held in Garrison v. Louisiana, 379 U.S. 64

(1964) that anything which might touch on an official’s

fitness for office is relevant and protected by the public

official rule. Moreover, the Texas Supreme Court

supported its ruling by the proposition tha!, “...if the

8

article contained no reference, implied or otherwise, to

Foster’s position as county surveyor, it could not be

said that the article related to his fitness for the

office.”” No authority was cited for this proposition, and

the decision below announces a rule for the State of

Texas completely contrary to the policy underlying the

public official rule. The New York Times privilege is

designed to encourage uninhibited, robust, and wide

open debate on public issues, and that policy is served

by any publication relating to the qualifications and

performance of a public official, whether or not it

refers to his official position.

The only reference below to any precedent for an

exception to the New York Times rule based on the

lack of reference to the person’s office is the case of

Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971).

In that case, the publication referred to a mayor who

was also a candidate for county tax assessor. The story

used his name, but did nof identify him either as a

mayor or as a candidate, and the defamatory statement

was an alleged indictment arising out of Damron’s

private activities. The Florida Courts had affirmed a

judgement for Damron on precisely the ground invoked

by the Texas Supreme Court, namely, that the New

York Times privilege was inapplicable because the

article in question did not refer to Damron’s position or

candidacy. The United States Supreme Court reversed,

holding the Times privilege applicable because “‘a charge

of criminal conduct against an official or a candidate,

no matter how remote in time or place, is ‘always

relevant to his fitness for office’ for purposes of

applying the New York Times rule....” 401 U.S. at

300. The Texas Supreme Court attempts in a footnote

to distinguish Ocala Star-Banner by noting that Damron

abandoned his “no reference” theory in the United

States Supreme Court, presumably believing that had he

9

not done so, then such theory would have been

accepted as an exception to the New York Times rule.

Laredo Newspapers, Inc. believes that the United States

Supreme Court would not have reversed an otherwise

correct judgment of a State Court and which was based

upon a valid theory of law simply because a litigant

relied on a different theory in the Supreme Court.

Instead, Petitioner believes that Ocala Star-Banner must

be correctly read as a rejection of any attempted “‘no

reference” exception to the New York Times rule, and

that such rejection would apply whether the publication

described past criminal conduct or, as here, non-

criminal conduct.

The “no reference” exception to the New York

Times rule announced by the Texas Supreme Court is a

totally unwarranted restriction of freedom of the press

in Texas, and should not be allowed to stand. Com-

pounding the error is the holding below that a jury can

be allowed to decide as a fact issue whether or not the

offending publication is related to the subject’s official

conduct for purposes of applying the First Amendment

privilege. Again, such a holding is totally without

precedent, and is contrary to the spirit, if not the

letter, of all prior decisions of the United States

Supreme Court. The only precedent cited by the Texas

Supreme Court for this holding was Rosenblatt v. Baer,

383 U.S. 75 (1966). There, the United States Supreme

Court held that, “it is for the trial judge in the first

instance to determine whether the proofs show respon-

dent to be a ‘public official.’”’ 388 U.S. at 88. The

Texas Supreme Court has apparently interpreted that

statement to mean that the trial judge first determines

whether the plaintiff is a “public official,” but that the

jury may decide whether the publication relates to his

official conduct and thus, necessarily, whether the

malice standard shall apply.

10

Petitioner suggests that his is a fundamental and

dangerous misreading of the Rosenblatt opinion. In the

very paragraph where the above quote is found, the

United States Supreme Court explicitly states that a

jury “may” be able to decide if malice exists, but that

it is for the trial judge to first make the “public

official” determination. The Court elaborated in a

footnote explaining that this procedure allows less

possibility that a jury will use the cloak of a general

verdict to punish unpopular ideas or speakers. In all

United States Supreme Court cases on this subject,

particularly including the landmark Gertz v. Welch, 418

U.S. 323 (1974), the Court has clearly decided whether

or not to apply the malice standard as a question of

constitutional law without the slightest suggestion that

any element of such a determination would ever be

submitted to a jury.

2.

THE TEXAS SUPREME COURT SERI-

OUSLY MISINTERPRETED PRIOR DECI-

SIONS OF THIS COURT BY HOLDING

THAT A PROFESSIONAL CONSULTANT

PAID BY PUBLIC FUNDS TO ADVISE A

GOVERNMENTAL BODY ON A MATTER

OF PUBLIC CONCERN WAS NOT AT

LEAST A “PUBLIC FIGURE.”

The case below was argued and decided largely upon

the question of how to interpret the landmark decision

in Gertz v. Welch, 418 U.S. 323 (1974). It is undis-

puted that Respondent Foster was regularly hired by

the Commissioners Court of Webb County, Texas and

paid with public funds to advise and consult that body

on a wide variety of engineering problems. It is further

undisputed that he was particularly retained and paid to

advise the County Commissioners on how to handle the

precise flooding problem which was the subject of the

newspaper articles in question. In fact, the record shows

that when a particular citizen appeared in the public

meeting of the Commissioners Court to complain about

the flooding for a second time, the Commissioners

immediately summoned Mr. Foster to respond to the

complaint in public session because he had already been

retained previously to study the problem and give his

opinions about a solution. The Texas Supreme Court

has nevertheless held under these facts that Foster did

not have a special prominence in the resolution of the

flooding controversy. That Court stated in support of

its conclusion that the record “‘does not indicate that

Foster had any personal interest in the resolution of the

flooding problem, and he remained strictly within his

role as an adviser to the commissioners court. Consis-

tent with his role as a private consulting engineer

employed by the commissioners court, Foster did not

attempt to influence the outcome of the flooding

controversy through exposure of his personal opinions

in the media.”” The Texas Supreme Court then found

support for this analysis in Gertz v. Welch, supra.

Petitioner submits that the Texas Supreme Court has

fundamentally misread and misunderstood the holding

in the Gertz case, and has consequently announced a

rule in Texas that will have a chilling effect on freedom

of the press. The Gertz opinion clearly and carefully

explained that the designation of a person as a “public

figure’ may rest on either of two alternative basis,

explaining that:

“In some instances, an individual may achieve such

pervasive fame or notoriety that he becomes a

public figure for all purposes and in all contexts.

More commonly, an individual voluntarily injects

12

himself or is drawn into a particular public

controversy and thereby becomes a public figure

for a limited range of issues. In either case, such

persons assume special prominence in the resolu-

tion of public questions.” 418 U.S. at 351.

The Texas Supreme Court in its opinion below

concentrated exclusively on the fame and notoriety

aspect of the Gertz test and completely disregarded the

fact that Foster was obviously a person drawn into the

heart of a public controversy and had definite and

obvious influence in the resolution of that controversy.

The Texas Court was impressed with the fact that

Foster could not personally authorize the expenditure

of funds, nor did he supervise other public employees,

nor did he have much public contact, but such an

analysis leaves a gaping hold in the privilege repeatedly

announced by this Court for free and uninhibited

discussion of matters involving public figures.

Failure to reverse this decision will have serious

adverse effects on the reporting of governmental activi-

ties in Texas and in any other State that might choose

to follow similar reasoning. It is common knowledge

that governmental bodies at all levels have come to rely

increasingly on consultants and other independent ex-

perts for information and advice in governmental

matters. Such persons as rate consultants, architects,

consulting engineers, computer experts, public relaiions

advisers, tax consultants, transportation specialists and

‘attorneys are employed by many governments to

perform functions that would have been done by

full-time governmental personnel in earlier times. These

persons are employed to gather information, but also to

recommend courses of governmental action. As a

practical matter, their role is little different from

full-time government officials and employees, except

that they are not directly accountable to the public.

13

It is extremely important for public business which

has been “delegated” to private consultants to be

monitored by the press as closely as if the work were

being done directly by government employees. The

present decision, however, cases serious doubts as to the

protection of the First Amendment with respect to any

newspaper articles relating to work performed for a

governmental body by a private consultant.

The comparison made by the Texas Supreme Court

to Foster’s role as adviser to the County Commissioners

Court and the role of Mr. Gertz as a legal adviser to his

client is seriously inaccurate. As stated by the Gertz

opinion, the participation of Gertz “related solely to his

representation of a private client.” 418 U.S. at 352.

The entire thrust of all United States Supreme Court

opinions in the free speech area clearly establishes that

there is an enormous difference between advising a

private client and advising a governmental body. This

distinction is so fundamental that it has been recog-

nized by legal authorities even apart from constitutional

considerations. For example PROSSER ON TORTS, 2d

Ed. Chapter 19 §95, and the RESTATEMENT OF

TORTS, Chapter 25 §607, have long recognized a

privilege of the press to criticize the work of indepen-

dent contractors paid out of public funds. This reason-

ing is followed by such cases as Turley v. W.T.A.X.,

Inc., 236 N.E.2d 778 (Ill. App. 1968). There, the

plaintiff was a professional architect and structural

engineer suing for defamation against a radio station.

The alleged libel related to the plaintiff's services as

architect in the design and acquisition of furnishings

and equipment for a new city building. Plaintiff was

held to be a public official.

The fact that Foster did not hold press conferences

or had no personal interest in the resolution of the

flooding problem is simply irrelevant. His role in this

14

controversy was precisely the same as might have been

performed by a county attorney had the County

Commissioners Court sought legal advice rather than

engineering advice. In such a hypotheses, a county

attorney would rarely have occasion to issue press

releases and would not necessarily have personal feelings

about the subject, but it could hardly be said that his

rendering of legal advice on a critical public issue would

not give him a place of special prominence on the

resolution of that issue. Clearly, the malice standard

would apply to any alleged defamation of a county

attorney. Henry v. Collins, 380 U.S. 356 (1965).

The Texas Supreme Court has also erred by constru-

ing prior decisions of the United States Supreme Court

to mean that the test in a defamation case is not

whether a person’s position is actually important to the

resolution of a public controversy, but instead is

whether or not the public has previously manifested an

interest in that particular person. This interpretation

was apparently derived from a reading of Rosenblatt v.

Baer, 383 U.S. 75 (1966), but Petitioner urges that this

requirement of manifest interest is not suggested by the

Rosenblatt opinion, nor by the general policy of the

New York Times privilege, which seeks to encourage

discussion of the qualification and performance of all

public officials and public figures, not just those in

whom the public has previously demonstrated an

interest. Under the opinion below, if the public has not

previously expressed interest in the activities of a

particular public employee, then that employee cannot

be a “public official” or ‘“‘public figure.” Thus, unless

the opinion is reversed, reports about some government

agents in Texas will be privileged only if the public has

manifested some degree of independent interest in their

activities prior to the time of publication. The press

must apparently determine at its peril how much

15

interest will suffice, and the extent to which such

interest must be manifested. The danger of self-

censorship which will result from this holding is

obvious.

3.

THIS CASE WILL ENABLE THE UNITED

STATES SUPREME COURT TO DEFINE

THE LIABILITY STANDARD WHICH THE

STATES MAY ADOPT IN SUITS INVOLV-

ING A DEFAMATION, THE SUBSTANCE

OF WHICH DOES NOT MAKE _ SUB-

STANTIAL DANGER TO REPUTATION AP-

PARENT.

Even if the United States Supreme Court were to

agree that Respondent Foster was neither a public

official nor a public figure, the facts of this case present

an excellent opportunity for this Court to elaborate

upon the caveat which was contained in the ultimate

holding of Gertz v. Welch, 418 U.S. 323 (1974). In

Gertz this Court held that, so long as they do not

impose liability without fault, the States may define for

themselves the appropriate standard of liability for a

publisher of a defamatory falsehood injurious to a

private individual. The Court cautioned, however, that

the holding applied to a case where the substance of

the defamatory statement makes substantial danger to

reputation apparent, and that different considerations

would be involved if a State conditioned civil liability

on a factual misstatement whose content did not warn

a reasonably prudent editor of its defamatory potential.

The Texas Supreme Court has now specifically adopted

this standard, but in Footnote 15 of its opinion simply

States that the present record fails to establish that the

16

allegedly libelous statements were insufficient to warn a

reasonably prudent editor of their defamatory potential.

In its Motion for Rehearing below, Petitioner urged

the Court to explain that comment, as it is not clear

whether the Texas Court was holding, (1) that the

substantial danger to reputation was apparent from the

statements in question, or (2) that perhaps a jury

should make such a determination, or (3) that the

Court did not have enough information to make such a

determination. Petitioner suggests that any of the three

alternatives are erroneous. The present record contains

the entire newspaper article plus a complete record as

to how and why the article was prepared. Certainly, a

constitutional standard should not be decided by a jury.

Finally, there is absolutely nothing about the allegedly

defamatory statement that would warn a publisher that

the statements would be substantially dangerous to

anyone’s reputation. The Gertz holding referred to the

case of Time, Inc. v. Hill, 385 U.S. 374 (1967), in

which this Court held that the negligence standard

would not suffice when a complaint simply refers to

erroneous facts associated in a news article with a

person’s name, picture, or portrait, and which are

nondefamatory on their face. Petitioner suggests that it

would be difficult to imagine a statement more innocu-

ous on its face than that involved in this case, and yet

still be allegedly libelous. Petitioner further suggests

that it would be helpful to the news media everywhere

if the United States Supreme Court would now explain

what standard of liability is permissible in a case of this

kind.

17

CONCLUSION

lor the foregoing reasons, a Writ of Certiorari should

issue to review the judgment and opinion of the

Supreme Court of Texas.

Respectfully submitted,

GEORGE P. KAZEN

Mann, Castillon, Freed & Kazen

Post Office Box 820

Laredo, Texas 78040

($12) 723-5581

Attorneys for Petitioner

APPENDIX A

Sunday, June 17, 1973 The Laredo Times

DEVELOPER SAYS FLOODING IN DEL MAR

CONFINED TO ONE AREA

By Odie Arambula

Times City Editor

Flooding conditions resulting from poor storm sewer

drainage is confined to a given spot of Del Mar Hills

and not the entire subdivision, according to a spokes-

man for a developer.

Earl Rice of James Rice Construction Co. told The

Times that general reference to Del Mar Hills in reports

of recent flooding “is not fair because we don’t have

that problem with our development.”

RICE SAID the complaints of May 1972 and this

week by a Del Mar resident, Glen Anderson, involved

flooding of some homes in an area developed years ago

by Harlingen interests.

The Rice development official said the flooded area

in question was platted by Jack Foster, who doubles as

consultant engineer for Webb County.

Foster has been handling numerous engineering jobs

for the Commissioners Court on a consultant basis

involving road improvements, some paving, park recrea-

tional work and drainage problems in Del Mar Hills.

RICE SAID the construction firm spent some

$27,000 for storm drainage facilities in one develop-

ment and $36,000 for similar work in another area of

Del Mar Hills.

He mentioned development in a 44-acre tract and

having completed 92 homes.

“We've never had any flooding or drainage prob-

lems,” Rice said.

2a

He said James Rice Construction Co. has been

working in the subdivision since 1969.

Rice said he sympathizes with the difficulties of

owners on Amherst where apparently clogged storm

sewer drains caused flooding in a property cluster,

including the Anderson home.

RICE: SAID in this instance he feels the county has

responsibility of maintaining storm sewer systems as

streets in the subdivision. He added that the county is

collecting taxes from some 500 Del Mar property

owners.

“The Del Mar Conservation District is not set up to

do anything about the problem,” Rice said. ““The Del

Mar Betterment League is just a group of property

owners. The district is in the business to provide water

and sewer services. That’s their job.”

The contractor’s representative said further develop-

ment in Del Mar Hills has nothing to do with the

flooding problems brought before the county commis-

sioners.

ANDERSON TOLD commissioners he bought a home

at 5 Broadcrest in 1963 and didn’t experience flooding

problems until May 1972 and last Sunday after rain-

storms.

Rice, meanwhile, said the problem at Amherst was

created years ago.

“In our development, we don’t have the problem and

we don’t feel we should be held responsible,” Rice said.

“The district is not claiming liability. Who did the

engineering? The county should do whatever is neces-

sary to eliminate the problem.”

Rice said he has discussed the problem with Foster

and County Atty. John Fitzgibbon. Fitzgibbon is the

attorney for the Rice firm.

Ib

APPENDIX B

IN THE SUPREME COURT OF TEXAS

No. B-5747

JOHN E. FOSTER,

Petitioner,

LAREDO NEWSPAPERS, INC.,

Respondent.

FROM WEBB COUNTY, FOURTH DISTRICT

This libel action instituted by John Foster against

Laredo Newspapers, Inc. affords this court an oppor-

tunity to interpret recent rulings of the United States

Supreme Court that establish differing standards of care

applicable to various classes of defamation plaintiffs.

The trial court rendered a take-nothing summary judg-

ment in favor of the defendant Newspaper and the

court of civil appeals affirmed. 530 S.W.2d 611. We

reverse and remand the case for trial.

The plaintiff Foster is a licensed civil engineer

engaged in private engineering practice in Laredo,

Texas. Additionally, Foster is the duly elected county

surveyor of Webb County. He also has been regularly

hired by the County as a private consulting engineer to

perform specific projects. One such private consulting

project involved the investigation by Foster of a

flooding problem in a subdivision known as Del Mar

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Hills. On June 17, 1973 an article printed in the Laredo

Times newspaper in connection with the flooding

problem made the following references to Foster:

“The Rice development official said the flooded

area in question was platted by Jack Foster, who

doubles as a consultant engineer for Webb County.

“Foster has been handling numerous engineering

jobs for the Commissioners Court on a consultant

basis involving road improvements, some paving,

park recreational work and drainage problems in

Del Mar Hills.”

The article resulted from a recent flooding incident

and an appearance before the commissioner’s court of

Webb County by a resident of Del Mar Hills complain-

ing of the flooding problem in his subdivision. Follow-

ing the meeting of the commissioner’s court an initial

article appeared in the Laredo Times covering the court

hearing on the flooding problem. One week later that

Newspaper published a follow-up article on the flooding

problem, and it was this second article which contained

the allegedly libelous statements upon which this action

is based. The second article was prompted by a

contractor engaged in development of the subdivision

who complained to the Newspaper that the first article

left a misleading impression that the flooding problem

existed throughout Del Mar Hills. The article quoted

the contractor’s statements at length with regard to the

nature of the flooding arid his opinion that the County

should solve the flooding problem. The statement in the

article that Foster platted the flood area was false.

Foster filed this action against Laredo Newspapers,

Inc. alleging that the article was libelous because (1) it

attributed to him “direct responsibility for the severe

flooding of homes located in said Del Mar Hills, thereby

indicating that [Foster’s] work was of inferior and

unsatisfactory quality,” and (2) the phrase “who

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doubles as consultant engineer for Webb County” used

in the article indicated that Foster “was performing

services for the County of Webb and other parties when

a direct conflict of interest between the said County

and other said parties existed, and that therefore

[Foster] was guilty of unethical and illegal conduct.”

Foster sought $250,000 as damages for the allegedly

libelous statements and an additional $125,000 punitive

damages.

The Newspaper filed a motion for summary judgment

on the grounds that Foster is either a “‘public official”

or “‘public figure” as defined by the Supreme Court of

the United States in the line of decisions beginning with

New York Times Co. v. Sullivan, 376 U.S. 254 (1964),

and consequently there could be no liability without a

showing of “actual malice.’”’” The Newspaper further

contended that the undisputed evidence in the record

negated a finding of “‘actual malice.”

The trial court sustained the Newspaper’s motion for

summary judgment and the court of civil appeals

affirmed holding that “Foster clearly falls within the

most restrictive definition of a ‘public official’ or a

‘public figure,” and we hold that he was both a public

official and a public figure as those terms are defined

by the courts of this state and of the United States.”

530 S.W.2d 611 at 616. The court further held that the

summary judgment proof “establishes as a matter of

law that such publication was not made with malice as

that term is defined in the applicable state and federal

court decisions.” 530 §.W.2d 611 at 619.

Foster’s principal points of error attack the holding

of the court of civil appeals (1) that he was either a

“public official” or “public figure,” and (2) that the

summary judgment proof negated the existence of a

fact issue with respect to the question of malice. The

initial and crucial question is whether the court of civil

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appeals correctly classified Foster as a “‘public official”

or “‘public figure.”

I. PUBLIC OFFICIAL

In New York Times Co. v. Sullivan, supra, the

Supreme Court of the United States, for the first time,

considered the extent to which the constitutional

protections for speech and press limit recovery in a libel

action brought by a public official against critics of his

official conduct. The plaintiff, an elected city commis-

sioner whose duties included supervision of the city’s

police department, brought suit in a state court alleging

that he had been libeled by an advertisement printed in

the New York Times newspaper. The advertisement

included statements, some of which were false, about

action by the city police directed against students who

participated in a civil rights demonstration and against a

leader of the civil rights movement. Following a jury

verdict for the plaintiff and affirmance by the state

supreme court, the case was reviewed by the Supreme

Court of the United States which reversed and re-

manded holding that the constitutional guarantees of

the First and Fourteenth Amendments require “a

federal rule that prohibits a_ public official from

recovering damages for a defamatory falsehood relating

to his official conduct unless he proves that the

statement was made with ‘actual malice’—that is, with

knowledge that it was false or with reckless disregard of

whether it was false or not.”' [Emphasis added.] 376

U.S. 254 at 279-80. In so holding the Court recognized

‘a profound national commitment to the principle that

debate on public issues should be uninhibited, robust,

' Hereinafter referred to as the New York Times rule.

é

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and wide-open, and that it may well include vehement,

caustic, and sometimes unpleasantly sharp attacks on

government and public officials.” 376 U.S. 254 at 270.

The Court further reasoned that “[a] rule compelling

the critic of official conduct to guarantee the truth of

all his factual assertions—and to do so on pain of libel

judgments’ virtually unlimited in amount—leads

to... ‘self-censorship.’ ”’ 376 U.S. 254 at 279.

In New York Times the Court did not attempt to

define the “public official” and “official conduct”

concepts, but left determination of the scope of these

concepts for future cases.* Further explanation of the

“public official” concept was then provided by the

United States Supreme Court in Rosenblatt v. Baer, 383

U.S. 75 (1966). The plaintiff in Rosenblatt was not an

elected official but, rather, a former supervisor of a

county recreation area who was employed by and

directly responsible to the county commissioners. His

libel action was brought against a local newspaper for

publication of a column that allegedly criticized the

financial management of the recreation area while it

was under the plaintiffs supervision. In deciding

whether to classify the plaintiff as a public official, the

Court set forth the competing values that must be

weighed and formulated a broad definition of the

“public official” concept. First, the Court emphasized

that there is a strong interest in debate on public issues

and about persons who are in a position to influence

the resolution of those issues.

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?The Court stated: “We have no occasion here to determine

how far down into the lower ranks of government employees the

‘public official’ designation would extend for purposes of this

rule, or otherwise to specify categories of persons who would or

would not be included.... Nor need we here determine the

boundaries of the ‘official conduct’ concept.” 376 U.S. 254 at

283 n. 22.

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“Criticism of government is at the very center of

the constitutionally protected area of free discus-

sion. Criticism of those responsible for government

operations must be free, lest criticism of govern-

ment itself be penalized.” 383 U.S. 75 at 85.

Secondly, the Court recognized that “[s] ociety has a

pervasive and strong interest in preventing and redress-

ing attacks upon reputation.” In balancing society’s

interest in protecting the reputations of its citizens and

the constitutional values of free speech and press, the

Court unmistakably concluded that the “public official”

designation does not apply to all government em-

ployees.* Rather, the designation applies “[w]here a

position in government has such apparent importance

that the public has an independent interest in the

qualifications and performance of the person who holds

it, beyond the general public interest in the qualifica-

tions and performance of all government employees.”

[Emphasis added.] 383 U.S. 75 at 86.

In determining whether Foster was a “public official”

for purposes of the New York Times rule, two aspects

of Foster’s relationship with the county government

must be examined. Foster was, first, a private consult-

ing engineer who was from time to time employed by

the County and, second, he was the duly elected

county surveyor.

The Newspaper contends that the New York Times

rule is applicable because Foster was a “public official”

in his capacity as a private consulting engineer em-

ployed by the County. The summary judgment proof

shows that Foster was employed by the County as a

private consulting engineer for numerous projects and,

according to the county judge, Foster performed the

3in Rosenbiatt the Court left open the possibility that on

remand the plaintiff could adduce proofs that he was not a

“public official.”

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large majority of the County’s engineering jobs. Never-

theless, Foster had no permanent engineering position

with the County and it was undisputed that the County

also hired other consulting engineers. Therefore, Foster

must be treated as a temporary employee of the

County and the applicability of the New York Times

rule must be determined with reference to the particu-

lar engineering project discussed in the allegedly libelous

article.‘

Foster’s involvement with the flooding problems in

Del Mar Hills as a consulting engineer for the County

dated back to April 1971 when he was employed by

the commissioner’s court to conduct an inspection of

the newly constructed streets and storm drainage

system in Del Mar Hills. Subsequently, in May and June

1972 when residents of the subdivision complained to

the commissioner’s court about recent flooding of their

homes, Foster was employed to study the drainage

problem and determine the availability of a federal

grant to remedy the flooding problem. Finally, in June

1973 when a resident of Del Mar Hills again complained

to the Commissioner’s court about the recent flooding

of his home, the court summoned Foster to appear

*Foster’s status as a temporary employee of the County is

supported by two additional considerations: (1) it appears that

Foster’s duties and responsibilities as a county employee varied

considerably from one project to another; and (2) if there was

any public interest in Foster’s employment with the County it

would naturally tend to focus on Foster’s involvement in each

particular engineering project.

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before the court and advise it about the drainage

problem. *

We HOLD that the summary judgment proof failed

to establish that Foster’s position as a consulting

engineer possessed “‘such apparent importance that the

public has an independent interest in the qualifications

and performance of the person who holds it, beyond

the general public interest in the qualifications and

performance of all government employees.” Rosenblatt

v. Baer, supra, at 86. The summary judgment proof

showed that whatever public interest the flooding

aroused was focused primarily on the commissioner’s

court which was attempting to determine the County’s

responsibility for the flooding problem. Although

Foster occasionally reported his findings to the commis-

sioner’s court at public meetings, the record fails to

show that the presentation of his reports stirred up any

significant public interest. The apparent lack of public

interest in Foster’s activities was undoubtedly attribu-

table to the fact that Foster had little if any authority

to exercise on behalf of the County. The commis-

sioner’s court assigned Foster specific tasks, such as

conducting a drainage study and determining the avail-

ability of a federal grant to solve the flooding problem,

but the nature of these tasks, as described in the

summary judgment proof, did not require that Foster

‘It appears that Foster was not employed by the County on

the date that the allegedly libelous newspaper article was printed.

In Rosenblatt v. Baer, supra, the Court recognized that “there

may be cases where a person is so far removed from a former

position of authority that comment on the manner in which he

performed his responsibilities no longer has the interest necessary

to justify the New York Times rule.” 383 U.S. 75 at 87 n. 14.

We deem it evident that Foster was not so far removed from his

former position as a consulting engineer for the County with

regard to the flooding problem as to render the New York Times

rule inapplicable.

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exercise a significant amount of discretion. Further-

more, it does not appear that Foster could personally

authorize the expenditure of public funds to solve the

flooding problem, nor did he supervise any other

employees of the County. Another fact that probably

explains the lack of public interest in Foster’s activities

was that Foster had very little public contact. There

was apparently no public input with regard to Foster’s

employment by the commissioner’s court to study the

flooding problem. In addition, the tasks assigned to

Foster did not require that he act in a representative

capacity for the County or have any direct dealings

with the public.

The Newspaper also urges that Foster was a “public

official” under the New York Times rule in his capacity

as elected county surveyor and that the allegedly

libelous statements in the newspaper article were rele-

vant to his fitness for that elected position. On the

other hand, Foster points to the summary judgment

proof which indicates that the office of county survey-

or entails minimal responsibilities and has become

virtually obsolete in recent years. According to Foster,

he occupied the office as a matter of convenience to

the County because the County was required by statute

to elect a surveyor. Furthermore, Foster was paid no

salary as county surveyor, and he had no staff provided

by the County. During the seven and one-half years

that he held the position Foster made an occasional

patent survey for the County, but he performed no

other duties in his official capacity.

Although the summary judgment proof certainly

established that Foster was a member of the lower -

echelons of the County government, we note that the

United States Supreme Court has not reserved the

°TEX. REV. CIV. STAT. ANN. art. 5283.

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“public official’? designation for high-level public offi-

cers alone. Time v. Pape, 401 U.S. 279 (1971) (deputy

chief of detectives); St. Amant v. Thompson, 390 US.

727 (1968) (deputy sheriff); Beckley Newspapers vy.

Hanks, 389 U.S. 81 (1967* (elected clerk of county

criminal and circuit courts); Henry v. Collins, 380 U.S.

356 (1965) (county attorney). More important, the

definition of “‘public official’ in Rosenblatt v. Baer,

supra, is keyed to the apparent importance of the

official position and the public interest in such position.

It may be presumed that a certain amount of public

interest exists with regard to any governmental position

if the general public selects the person who holds the

position through the election process. In recognition of

the special public interest in elected officials, the

Supreme Court has held that the constitutional guar-

antees of free speech and press have their “fullest and

most urgent application” to the election process. Patriot

Co. v. Roy, 401 U.S. 265 (1971). Finally, it cannot be

doubted that the New York Times rule applies to any

candidate for public office, even a candidate for a

position such as county surveyor, at least during the

course of the election campaign. It would be somewhat

incongruous to hold that a candidate for public office is

a public person during the campaign but loses that

status upon taking office. We therefore conclude that

Foster was a “public official’’ for purposes of the New

York Times rule.

We hold, however, that the summary judgment

evidence failed to establish the applicability of the New

York Times rule because the allegedly libelous state-

ments in the newspaper article did not clearly relate to

Foster’s “official conduct” as county surveyor. It is

undoubtedly true that the United States Supreme Court

has interpreted the “official conduct” concept very

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broadly,’ but all of the public official defamation cases

considered by the Court, except one,’ involved state-

ments that referred to performance of official duties or

fitness for office of government officials. In the instant

case, however, the newspaper article containing the

allegedly libelous statements made no express reference

to Foster’s fitness for the office of county surveyor,

nor was it concerned with Foster’s performance of his

official duties. Instead, the article discussed Foster’s

activities as “‘“consultant engineer for Webb County.”

Nevertheless, the Newspaper seeks to invoke the New

York Times rule on the grounds that the allegedly

"In Garrison v. Louisiana, 379 U.S. 64 (1964), the Court

stated: “The public-official rule protects the paramount public

interest in a free flow of information to the people concerning

public officials, their servants. To this end, anything which might

touch on an official’s fitness for office is relevant.’’ 379 U.S. 64

at 77. Also, in Patriot Co. v. Roy, supra, the Court suggested

that the “official conduct” concept has been substantially

diluted: “Indeed, whatever vitality the ‘offical conduct’ concept

may retain with regard to occupants of public office, cf.

Garrison, supra, at 72 n. 8, 13 L. Ed 2d at 131, it is clearly of

little applicability in the context of an election campaign.” 401

U.S. 265 at 274.

Sin Ocala Star-Banner Co. y. Damron, 401 U.S. 295 (1971),

the plaintiff, who was a mayor and candidate for county tax

assessor, filed a libel action against a local newspaper as a result

of an article which mistakenly stated that he had been indicted

on perjury charges in a federal court. The article referred to the

plaintiff as “local garage owner Leonard Damron” but did not

mention that Damron was a mayor or a candidate for county tax

assessor. The Court held that the New York Times rule was

applicable but noted: “Both the trial judge on motion for new

trial and the District Court of Appeal rested their conclusion that

New York Times did not apply partly on the ground that the

defamatory article nowhere mentioned the respondent’s status as

mayor of Crystal River or as a candidate for county tax assessor.

The respondent has not pursued that theory here.” 401 U.S. 295

at 300 n. 4.

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libelous statements in the article were germane to

Foster’s fitness for the office of county surveyor.

However, if the article contained no reference, implied

or otherwise, to Foster’s position as county surveyor, it

could not be said that the article related to his fitness

for the office. If such is the instance, the allegedly

libelous statements did not concern Foster’s “official

conduct” and the New York Times rule would not be

applicable. The “public official’ rule set forth in the

New York Times case was not meant to protect

reporting of matters that have at best a coincidental

bearing on governmental affairs. Of course, there may

be instances where the absence of an express reference

to an individual’s official capacity is unimportant. Many

public officials are so well-known in their communities

that the general public automatically associates them

with their official positions. In such instances an

express reference in a newspaper article to the indi-

vidual’s official capacity is unnecessary and the refer-

ence is implied. Based upon the summary judgment

evidence presented we cannot conclude that the article

in question contained any implied reference to Foster’s

position as county surveyor.’ In particular, Foster has

shown that the duties and responsibilities of the county

surveyor were minimal and that he was not opposed in

any election for the position.

*The deposition testimony of the Newspaper’s city editor who

wrote the article in question indicates that he did not associate

the statements in the article with Foster's qualifications for the

office of county surveyor. According to the city editor, the sole

purpose of the reference to Foster was to show that the County

was aware of the flooding problem through Foster’s activities as

a consulting engineer. The city editor made the following

response to a question by plaintiff's counsel:

“Q. In making the statement in the only daily newspaper

published in this area that Mr. Jack Foster, whom you

know to be a professional engineer, had so platted an area

(continued)

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Thus, a fact issue was raised as to whether the

allegedly libelous statements in the newspaper article

referred to Foster’s position as county surveyor. In

order to establish the applicability of the New York

Times rule the Newspaper must at least prove upon the

trial of this case that the article impliedly referred

thereto.'®

Il. PUBLIC FIGURE

The New York Times rule, which previously had

been restricted in application to “public officials,” was

extended to cover “public figures” in Curtis Publishing

Company v. Butts, and its companion case, Associated

Press v. Walker, 388 U.S. 130 (1967). Butts involved

publication of an article charging a well-known athletic

director of a major university with having “fixed” a

(footnote continued from preceding page)

that it was subject to severe flooding, didn’t you realize,

Mr. Arambula, that this would hurt his reputation and that

it would mark his work as being inferior and unsatisfac-

tory?

“A. | would answer that negative, sir. The conservation

here had nothing to do with Jack Foster. He [Mr. Rice, the

contractor who was being interviewed] injected Jack into

the conversation when this matter of the County being

responsible and who should look out there and see what’s

wrong and who should take action to provide a remedy for

these people because as | recall in the conversation I asked

Mr. Rice—I suggested to him that he should pose this

problem to the Commissioner’s Court and again here he

said, ‘well, you know, they know about these problems,

they're aware....””

' Although it is the task of the trial judge in the first instance

to determine the existence of the privilege under the New York

Times rule, Rosenbiatt v. Baer, supra, at 88, the trial court may

submit to the jury fact issues relating to the existence of the

privilege.

— '14b

football game. Although the plaintiff was the univers-

ity’s athletic director at the time the article was

published, he was employed by a private corporation

and not by the state itself. In Walker the allegedly

libelous article charged the plaintiff with encouraging

and leading rioters on a university campus in connec-

tion with a racial controversy. The Court stated thai

the plaintiff, who was a retired army general, “could

fairly be deemed a man of some political prominence.”

Although the Court could not agree upon an opinion in

Butts and its companion, Walker, a majority of the

Court held that the plaintiffs in both cases were “public

figures,” and further held, through Mr. Chief Justice

Warren’s concurring opinion, that the New York Times

rule applies to ‘“‘public figures’ as well as “public

officials."” Mr. Chief Justice Warren wrote:

“ ..it is plain that although they are not subject

to the restraints of the political process, ‘public

figures,’ like ‘public officials,’ often play an influ-

ential role in ordering society. And surely as a

class these ‘public figures’ have as ready access as

‘public officials’ to mass media communication,

both to influence policy and to counter criticism

of their views and activities.”” 388 U.S. 130 at 164.

Further elaboration of the public figure concept was

provided by the Court in Gertz v. Welch, 418 U.S. 323

(1974). The plaintiff in Gertz was an attorney repre-

senting a murder victim’s family in a civil suit against a

police officer who was convicted for the murder. The

basis for the libel suit was a magazine article in

connection with the murder incident which falsely (1)

implied that the plaintiff had a criminal record, (2)

charged that the plaintiff was a “Leninist” or a

“Communist-fronter,” and (3) identified the plaintiff as

a former official of a Marxist organization. In determin-

ing whether Gertz possessed the necessary character-

1Sb

istics of a “public figure,” the Court observed that

“public figures’’ fall into two general categories:

“In some instances an individual may achieve such

pervasive fame or notoriety that he becomes a

public figure for all purposes and in all contexts.

More commonly, an individual voluntarily injects

himself or is drawn into a particular public

controversy and thereby becomes a public figure

for a limited range of issues. /n either case such

persons assume special prominence in the resolu-

tion of public questions.”’ [Emphasis added.] 418

U.S. 323 at 351.

The Court first concluded that the plaintiff did not fit

within the category of individuals who are “public

figures” for all purposes and in all contexts. The Court

then turned to the question whether the plaintiff was a

public figure with respect to the particular controversy

giving rise to the defamation, and concluded:

“In this context it is plain that petitioner was not

a public figure.... He plainly did not thrust

himself into the vortex of this public issue, nor did

he engage the public’s attention in an attempt to

influence its outcome.”’ [Emphasis added.] 418

U.S. 323 at 352.

There is nothing in the summary judgment evidence

to indicate that Foster achieved pervasive fame or

notoriety in the community. It appears that Foster

certainly did not possess any greater fame or notoriety

in his community than the plaintiff in Gertz who

“served as an officer of local civic groups and of various

professional organizations, and...published several

books and articles on legal subjects.”” 418 U.S. 323 at

351. We therefore hold, as did the Court in Gertz, that

Foster did not achieve the status of “a public figure for

all purposes and in all contexts.”

16b

With regard to Foster’s status as a “public figure”

within the context of the controversy over the flooding

problem, our previous discussion of his role as a

consulting engineer made clear that Foster did not

assume a special prominence in the resolution of this

controversy. Foster is clearly distinguishable from the

plaintiff in Walker who, according to the Court, made a

number of strong public statements related to federal

intervention in racial matters and obtained wide pub-

licity of his views. In addition, there is little re-

semblance between Foster and the plaintiff in Butts

who was described by the Court as “a well-known and

respected figure in coaching ranks” who may have

attained “public figure” status by virtue of his position

alone.

The summary judgment record does not indicate that

Foster had any personal interest in the resolution of the

flooding problem, and he remained strictly within his

role as an adviser to the commissioner’s court."'

Consistent with his role as a private consulting engineer

employed by the commissioner’s court, Foster did not

attempt to influence the outcome of the flooding

''a quite different situation was presented in Greenbelt Pub.

Assn. v. Bresler, 398 U.S. 6 (1970), where it was conceded that

the plaintiff was a public figure in the community. The Court

stated that “[t]his concession was clearly correct,”’ emphasizing

the following factors: “Bresler was deeply involved in the future

development of the city of Greenbelt. He had entered into

agreements with the city for zoning variances in the past, and

was again seeking such favors to permit the construction of

housing units of a type not contemplated in the original city

plan. At the same time the city was trying to obtain a tract of

land owned by Bresler for the purpose of building a school.

Negotiations of significant public concern were in progress, both

with school officials and the city council. Bresler’s status thus

clearly fell within even the most restrictive definition of a ‘public

figure.’ ’’ 398 U.S. 6 at 9-10.

17b

controversy through exposure of his personal opinions

in the media. Similar considerations influenced the

United States Supreme Court to hold that the plaintiff

in Gertz was not a “public figure” within the context

of that particular controversy:

“He [the plaintiff] played a minimal role at the

coroner’s inquest, and his participation related

solely to his representation of a private client. He

took no part in the criminal prosecution of Officer

Nuccio. Moreover, he never discussed either the

criminal or civil litigation with the press and was

never quoted as having done so.”” 418 U.S. 323 at

352.

In view of Foster’s limited participation in the

controversy giving rise to the allegedly libelous news-

paper article, we consider it evident that he “did not

thrust himself into the vortex of this public issue, nor

did he engage the public’s attention in an attempt to

influence its outcome.” 418 U.S. 323 at 352. We

therefore hold that the summary judgment evidence

failed to establish that Foster achieved the status of a

public figure within the context of the local contro-

versy over the flooding in Del Mar Hills.

Ill. STANDARD OF CARE

Having held that the summary judgment proof failed

to establish that Foster was a “public figure” or that

the allegedly libelous statements related to his official

conduct, we must now determine whether Foster’s right

of recovery against the Newspaper as a private indi-

vidual’? nevertheless depends upon the New York

"We use the term “private individual” as encompassing

“public officials” whose official conduct is not the subject of the

allegedly libelous statement.

18b

Times standard—knowledge of falsity or reckless disre-

gard for the truth. The question whether the New York

Times standard applies to private individuals such as

Foster was first considered by the Supreme Court in

Rosenbloom vy. Metromedia, 403 U.S. 29 (1971).

Although the majority of the Court could not agree

upon an opinion in Rosenbloom Mr. Justice Brennan’s

plurality opinion did conclude that the New York

Times standard applies in a libel action by a private

individual against a licensed radio station for a defama-

tory falsehood relating to a matter of public or general

concern.

Subsequently, in Gertz v. Welch, supra, a majority of

the Court rejected the approach of the plurality opinion

in Rosenbloom and held that states may define for

themselves the appropriate standard of liability for a

publisher or broadcaster of a defamatory falsehood

injurous to a private individual “‘so long as they do not

impose liability without fault.” 418 U.S. 323 at 347.

The Court reasoned that “‘[t]his approach provides a

more equitable boundary between the competing con-

cerns involved,” and “recognizes the strength of the

legitimate state interest in compensating private indi-

viduals for wrongful injury to reputation, yet shields

the press and broadcast media from the rigors of strict

liability for defamation.” 418 U.S. 323 at 347-48. The

effect of the Court’s holding that states may not

impose liability without fault on publishers and broad-

casters of defamatory falsehoods is to sanction a simple

negligence standard as complying with the minimum

. =! _—_— ="

19b

requirements of the First and Fourteenth Amend-

ments.'?

As a further limitation upon the right of private

individuals to recover in libel actions against publishers

or broadcasters of defamatory falsehoods, the Court

held in Gertz that a private individual ‘“‘who establishes

liability under a less demanding standard than that

stated by New York Times may recover only such

damages as are sufficient to compensate him for actual

injury.”” 418 U.S. 323 at 350. In so holding, the Court

explained that the states’ interest in protecting the

reputation of its citizens becomes more attenuated in

the field of presumed and punitive damages, and the

discretion of juries to award substantial sums as

punitive damages poses a serious threat to the constitu-

tional values of free speech and press.

The limitations imposed in Gertz upon the states’

right to secure compensation for injuries to reputation

represent a minimum standard which the states are

constitutionally bound to adopt. However, states retain

the right to provide additional safeguards for the

constitutional guarantees of free speech and press. Since

Gertz was decided, two states have extended the New

York Times standard to cover private individuals in-

volved in matters of public concern. Walker v. Colorado

Springs Sun, Inc., Colo., 538 P.2d 450 (1975), cert.

'9Mr. Justice Blackmun’s concurring opinion in Gertz vy.

Welch, supra, stated that “the Court now conditions a libel

action by a private person upon a showing of negligence, as

contrasted with a showing of willful or reckless disregard.” 418

U.S. 323 at 353. Also, Mr. Justice Powell’s concurring opinion in

Time, Inc. v. Firestone, —_. U.S. , 96 S. Ct. 958, 970

(1976), clearly implied that proof of simple negligence satisfies

the minimal constitutional requirements: “Thus, while a State

may elect to hold a publisher to a lesser duty of care, there is no

First Amendment constraint against allowing recovery upon

proof of negligence.”

‘ 20b

denied, USS. (1976) (adopting a slightly

modified version of the New York Times standard);

Aafco Heating & Air Con. Co. v. Northwest Pub., Inc.,

321 N.E.2d 580 (Ind. App. 1974), cert. denied, 96 US.

1112 (1976). With respect to defamatory falsehoods

about private individuals and relating to matters of

legitimate public concern New York has adopted a

“grossly irresponsible conduct” standard of liability.

Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d

196, 341 N.E.2d 569 (1975). However, the majority of

courts in other jurisdictions where the question has

been decided have adopted negligence as the standard

of liability in defamation actions by all private indi-

viduals. Thomas H. Maloney & Sons, Inc. v. E. W.

Scripps Co., 43 Ohio App. 2d 105, 334 N.E.2d 494

(1974), cert. denied, 423 U.S. 883 (1975); Cahill v.

Hawaiian Paradise Park Corporation, 543 P.2d 1356

(Hawaii 1975); Troman v. Wood, 62 Ill. 2d 184, 340

N.E.2d 292 (1975); Gobin v. Globe Publishing Com-

pany, 216 Kan. 223, 531 P.2d 76 (1975); Jacron Sales

Co., Inc. v. Sindorf, 350 A.2d 688 (Md. 1976); Stone v.

Essex County Newspapers, Inc., Mass., 330 N.E.24 161

(1975); Taskett v. King Broadcasting Company, Wash..,

546 P.2d 81 (1976).

The shortcomings of the New York Times standard

are widely recognized. In order to recover in a

defamation action under the New York Times standard

a plaintiff must produce “‘sufficient evidence to permit

the conclusion that the’ defendant in fact entertained

serious doubts as to the truth of his publication.” St.

Amant v. Thompson, supra, at 731. The Supreme Court

has noted the deficiencies of this strict standard:

“It may be said that such a test puts a premium

on ignorance, encourages the irresponsible pub-

lisher not to inquire, and permits the issue to be

determined by the defendant’s testimony that he

21b

published the statement in good faith and unaware

of its probable falsity.”” 390 U.S. 727 at 731.

The New York Times standard, of course, relates

only to “public officials” and “public figures.” Private

individuals, on the other hand, whether engaged in

matters of public concern or not, involve quite different

considerations. The First Amendment interest in vigor-

Ous reporting of the activities of “public officials” is

clearly more compelling than the interest in reporting

activities of private individuals because “‘[c] riticism of

government is at the very center of the constitutionally

protected area of free discussion.” Rosenblatt v. Baer.

supra, at 85. Furthermore, application of the New York

Times standard to “public figures” may be justified on

the grounds that the state has a less substantial interest

in protecting persons who have voluntarily exposed

themselves to increased risk of injury trom defamatory

falsehoods.'* In contrast, private individuals are more

deserving of protection because, as a class, they are less

likely to seek public attention and comment. We

therefore decline to extend the New York Times

standard to actions by private individuals seeking to

recover compensation for actual injuries.

We also decline to adopt an intermediate standard of

liability such as gross negligence because it would not

provide demonstrably greater protection to the media

from self-censorship than a standard of ordinary negli-

gence. The distinction between ordinary negligence and

gross negligence in the defamation context is not

entirely clear, and it is doubtful that the choice of one

label rather than the other will significantly affect the

'4“Hypothetically, it may be possible for someone to become

a public figure through no purposeful action of his own, but the

instances of truly involuntary public figures must be exceedingly

rare.’ Gertz v. Welch, supra, at 345.

22b

evolution of constitutional defamation law. Limitations

upon the right of recovery in defamation actions that

are deemed necessary to protect publishers and broad-

casters from an unreasonable degree of liability will

undoubtedly be adopted by the courts regardless which

label is used.

We hold that a private individual may recover

damages from a publisher or broadcaster of a defama-

tory falsehood as compensation for actual. injury upon a

showing that the publisher or broadcaster knew or

should have known that the defamatory statement was

false. In addition, the liability of a publisher or

broadcaster of a defamatory falsehood about a private

individual may not be predicated upon “a factual

misstatement whose content [would] not warn a

reasonably prudent editor or broadcaster of its defama-

tory potential.” Gertz v. Welch, supra, at 348.'*

The negligence standard of liability coupled with the

“actual injury” requirement established in Gertz pro-

vides a useful beginning point for the development of

'SThe Court added the following caveat in Gertz: “Our

inquiry would involve considerations somewhat different from

those discussed above if a State purported to condition civil

liability on a factual misstatement whose content did not warn a

reasonably prudent editor or broadcaster of its defamatory

potential.” 418 U.S. 323 at 348. We interpret the caveat to mean

that no liability may be predicated upon a statement whose

content would not warn a reasonably prudent editor or broad-

caster of its defamatory potential. Se RESTATEMENT (Second)

OF TORTS, §5808, comment c at 28-9 (Tent. Draft No. 21,

1975). An editor or broadcaster who has taken reasonable

precautions to assure that his statements will not be injurious to

reputation is no less deserving of protection from libel actions

than one who had made a reasonable inquiry to determine the

truth of his statements. With respect to the instant case, the

summary judgment proof fails to establish that the allegedly

libelous statements were insufficient to warn a _ reasonably

prudent editor or broadcaster of their defamatory potential.

23b

constitutional defamation law and has the capability of

achieving a fair balance between the competing interests

at stake. In light of our adoption of a negligence

standard in defamation actions instituted by private

individuals such as Foster, the summary judgment

rendered in favor of the Newspaper must be reversed.

The Newspaper’s motion for summary judgment sought

to establish the applicability of the New York Times

standard to Foster as a “public official’ or “public

figure’”’ and then to negate the existence of any fact

issue with respect to the New York Times standard.

The Newspaper has not asserted a right to summary

judgment upon a negligence standard. We therefore find

it unnecessary to determine whether the summary

judgment proof negated the existence of any fact issues

with regard to negligence or to further elaborate upon

the negligence standard adopted today.

The judgments of the trial court and of the court of

civil appeals are reversed and the cause is remanded for

trial.

SAM D. JOHNSON

Justice

Dissenting opinion by Justice Pope.

OPINION DELIVERED: July 14, 1976.

Ic

APPENDIX C

IN THE SUPREME COURT OF TEXAS

No. B-5747

JOHN E. FOSTER,

Petitioner,

LAREDO NEWSPAPERS, INC.

Respondent.

FROM WEBB COUNTY, FOURTH DISTRICT

DISSENTING OPINION

I respectfully dissent. John Foster was a public

official when the article in question was published and

actual malice was an essential element of the libel

action. I cannot improve upon these reasons which are

expressed by the opinion in the court of civil appeals:

It is undisputed from the record that (a) Foster

is the public surveyor of Webb County, (b) such

office is an elective office provided for under the

laws of this state, (c) Foster’s name has appeared

on the public ballot in Webb County 7n numerous

occasions, and he has been elected to such office

by the voters of Webb County on numerous

occasions, (d) at the time of the alleged libel and

for many years before, Foster was the county

surveyor of Webb County.

2c

It is also undisputed that Foster, over a period

of years, had been employed by Webb County as

the consultant engineer on various public projects,

including construction of county swimming pools,

development of recreational areas, drainage prob-

lems in the Del Mar Hills Subdivision, road

improvements, jail house improvements, design on

a children’s park, and work at a county dam.

There is testimony that these projects covered the

vast majority of all the major county projects

during the last ten years and that Foster was hired

by Webb County for these projects and was paid

out of public funds for such work.

It is also clear that Foster had taken an active

part in the particular activities giving rise to the

defamation. The newspaper article in which the

alleged libelous statement was made involved the

problem of flooding in the Del Mar Hills Sub-

division, which was a matter of considerable public

interest in Laredo and in Webb County, and had

resulted in citizen’s complaints and public meetings

in Laredo. Such flooding problems had been the

subject of a previous article in the Laredo Times

which covered a public meeting of the Commis-

sioner’s Court on June 11, 1973, at which time, a

private citizen, Mr. Anderson, a resident of the Del

Mar Hills Subdivision had complained about the

flooding problem. This same citizen had previously

complained to the Commissioner’s Court in 1972

about such floods and, as a result of such

complaint, Foster was called in by the Commis-

sioner’s Court to investigate and make a study of

the drainage problem. Such study was made by

Foster and he reported to the Commissioner’s

Court in this regard. Foster was paid for such

services by Webb County. When Anderson returned

to the Commissioner’s Court a second time in

June, 1973, Foster was again called by the

Commissioner’s Court because of his familiarity

3c

with the problem and participated in the public

meeting.

It would appear that Foster was rot only

involved in the particular controversy giving rise to

the suit here involved but that his participation

and involvement was connected with and arose out

of his official duties and services for Webb County,

either as a public official of Webb County or as a

paid consultant engineer for such county.

In our opinion, Foster clearly falls within the

most restrictive definition of a “public official” or

a “public figure,” and we hold that he was both a

public official and a public figure as those terms

are defined by the courts of this state and of the

United States. 530 S.W.2d 611, 615-616.

JACK POPE

Justice

OPINION DELIVERED:

July 14, 1976.

ld

APPENDIX D

IN THE SUPREME COURT OF TEXAS

No. B-5747

JOHN E. FOSTER,

Petitioner,

LAREDO NEWSPAPERS, INC.,

Respondent.

FROM WEBB COUNTY, FOURTH DISTRICT

ON MOTION FOR REHEARING

DISSENTING OPINION

I would affirm the judgment of the lower courts. The

Constitution of Texas provides that the Legislature shall

“prescribe the duties and provide for the election” of a

County Surveyor “who shall have an office at the

county seat....” Article 16, Section 44. Plaintiff is a

public official as the elected County Surveyor of Webb

County and the newspaper article, to the extent that it

could be said to be defamatory, bears upon the

plaintiff's fitness for that office. I find no basis for our

holding that the newspaper article itself must give

notice of the office or performance of official duties of

the plaintiff. Can it be the law that the Sullivan rule

applies to the publication of a news article about an

officeholder whose identity and office is not familiar to

the general public—if, but only if, the article itself

2d

reveals that the defamed person is an elected official? |

regard this rule as contrary to the decisions of the

United States Supreme Court.

THOMAS M. REAVLEY

Justice

Chief Justice Greenhil joins in this dissenting opinion.

OPINION DELIVERED: October 6, 1976.